Most commonly, the immediate family members of the deceased can bring a lawsuit for wrongful death, but there are exceptions.

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If a family member has died as the result of the negligence or other
wrongful act of another person, you might be able to file a wrongful
death lawsuit. These kinds of claims are designed to compensate the
family members of the person who died for losses sustained as a result
of the death. This article will discuss who can file a lawsuit for wrongful death.

What is a Wrongful Death Lawsuit?

Historical Approach. In the past, you could not sue
someone in civil court for the death of another human being. In other
words, the perpetrator of the killing could still go to jail, but the
family of the decedent (the person who has died) could not sue for money
damages. As a consequence of this rule, if a person injured another
person, the perpetrator was actually better off financially if the
victim died, either immediately after the injury or at any time before
trial.

Modern Approach. These days, every state has enacted
laws that supersede the harshness of the old rule. Generally, wrongful
death statutes now allow a representative of the decedent, or the
decedent’s estate, to sue for civil damages, including damages for
grief, sorrow, and mental suffering.

Who Can File Suit for Wrongful Death?

Though all states have statutes that create a right to recover for
wrongful death, the particular person or persons that are permitted to
file suit may vary significantly from state to state. This section will
survey the two systems most widely used by wrongful death statutes.

The Lord Campbell System

Most states have enacted wrongful death statutes
that are patterned after the "Lord Campbell’s Act," which was enacted by
the British Parliament in 1846. This may sound a little crusty, but
read on.

Under American statutes based upon this Act, a wrongful death claim
can only be brought by a designated beneficiary, who are people (or a
class of people) specified by the statute, usually based on relationship
to the deceased. For example, some statutes designate the widow or
widower of the decedent -- or his or her child or children -- as the
statutory beneficiary.

The benefit to sue will be exclusive to that class, meaning that if
there are living members of the first class, the right of action is only
available to members of that class. If there are no living members, the
right passes to members of the next class. So, if there are no members
of any of the classes living at the time of the victim’s death, a
wrongful death claim cannot be brought.

Examples of designated beneficiaries might be:

immediate family members, including spouses, children, adopted children, and parents of unmarried children

distant family members, such as siblings and grandparents

parents of a deceased fetus

domestic or life partners, and

financial dependents and those who suffer financially as a result of the death.

The Loss-To-Estate System

In other states, a wrongful death claim can only be brought by the
decedent’s estate to compensate it for the losses sustained as a result
of the decedent’s death.

This lawsuit is typically brought by a personal representative of the
decedent’s estate. A personal representative is someone appointed by
the probate court to administer the decedent’s assets. This personal
representative would bring suit under his or her own name alone, but any
amount he or she recovers would be held subject to a special trust for
disbursement to all the designated beneficiaries. Again, how each state
measures the losses sustained will vary from state to state.